5. New Rules
Order for Lifelong Restriction
5.1 Section 5.3 (dossiers in tribunal cases) of the Parole Board guidance manual states at 5.3.2 that the dossier contents should, where the person is subject to an order for lifelong restriction, contain a risk management plan (RMP) approved by the Risk Management Authority (RMA), where one has been prepared by the lead authority.
5.2 We propose to include in the rules a specific provision to make clear that the dossier must contain the most up-to-date available RMP which has been approved by the RMA.
5.3 This provision is needed to ensure that the most recently approved RMP is available to the Board. The final decision whether to release a person would remain for the Parole Board having had regard to the information contained within the RMP.
5.4 Two recent judicial reviews1 reinforced that whilst a Parole Board tribunal does not have to follow the conclusion in the RMP on manageability in the community, "having regard" meant that a clear explanation should be provided if a different conclusion is reached. These reviews also confirmed that the Board does not have the power to direct the creation of community risk management plan as this would run counter to the statutory regime. We therefore also propose to reinforce the need to "have regard" to the RMP to clear up any ambiguity on the rationale for a decision to release, contrary to the risk assessment and plan. We consider this may be part of the decision note where an explanation for the reasons for release is provided and that the rules should expressly provide for this.
7. Do you agree or disagree that provision should be made in the rules making clear the Parole Board must consider the most up to date risk management plan which has been approved by the Risk Management Authority and that an up-to-date plan should always be available, where it has been prepared by the lead authority?
8. Do you agree or disagree that the decision note should provide the rationale for the reasons to release when the reasons are contrary to the rick management plan and that provision should be included in the rules?
Reviewing a Decision
5.5 We propose to introduce a new provision which allows the Parole Board time to review a case once the initial decision has been taken. The proposal is that a decision is provisional for a period of time, and becomes final unless an application is made to review the decision.
5.6 A review would be considered if 'new' evidence or a 'new' document becomes available which was not contained within the dossier of information considered by the panel taking the original decision. This would allow a review based on the new evidence or new document.
5.7 It is also considered that a review may be requested where an administrative error has occurred which prevented documentation or evidence being available due to no fault of the person concerned or their representative. For example, where the individual's representations had been sent on time but had not been made available to the panel by adding the documentation to the dossier.
5.8 We propose that any request to review would have to be made within 28 days of a provisional decision, thereafter the decision would become final.
5.9 We propose to restrict the review availability so as a review cannot be requested because a person or their representative does not agree with or dislikes the decision.
5.10 The grounds where a review may be granted are where the decision was:
- Procedurally unfair – i.e. the correct process was not followed, for example, important evidence was not shared or available; or
- Irrational - the decision makes no sense based on the evidence of risk that was considered and that no other rational panel could come to the same conclusion.
5.11 We consider the final decision on whether to conduct a review in any circumstances would be for the Parole Board.
5.12 It is considered the availability of a review would reduce the need for costly judicial reviews in certain circumstances.
9. Do you agree or disagree with the proposal to allow a review of a Parole Board decision if:
- additional information or documentation becomes available,
- the decision is procedurally unfair, or
- the decision was irrational
10. Are there any other circumstances which you consider a review of the decision should be available?
5.13 Under the current rules, a prisoner may be represented (whether by a solicitor or by any other person) in parole proceedings only if they have appointed the representative themselves, or if they have agreed to the Parole Board appointing a representative on their behalf.
5.14 There is a lack of clarity as to how a prisoner, who is unable either to appoint a representative or to agree to one being appointed on their behalf, could be represented in parole hearings. While this may only affect a small number of cases (i.e. cases where through illness or disability a prisoner entirely lacks capacity to appoint or agree to the appointment of a representative), it is considered that provision should be made to clarify how the Parole Board may ensure that the interests of prisoners in this position can be represented. At the moment a hearing can go ahead with no representation. This presents some uncertainty that the prisoner fully understands what is happening to them or if they comprehend their rights and choices.
5.15 We propose to include in the rules a provision to enable the Parole Board to appoint a representative without the prisoners agreement, in circumstances where the Parole Board consider it necessary, taking into account the principles of the Adults with Incapacity (Scotland) Act 2000 and where the Board has been advised that the prisoner is unable to instruct their own representative. This may be due to the prisoner having a mental disorder or an inability to communicate because of a physical disability.
5.16 The Parole Board can already seek medical/psychologist/prison reports to enable them to reach a decision on the person's capacity to take part in proceedings. These reports assist the Board in reaching a decision on whether a representative is necessary or whether the prisoner can be supported to appoint a representative themselves. The Parole Board can also provide guidance to members on alternatives to appointment of a representative in suitable cases, including advocacy services.
11. Do you agree or disagree, that if a prisoner lacks capacity to make decisions for themselves the Parole Board should be able to appoint a representative for them without their agreement?
Preparation for parole hearing
5.17 Information provided by the Parole Board indicates that often individuals attend their parole hearing without proper preparation. This can lead to postponements whilst additional information is sourced, which is not a good use of public funds. To better prepare an individual for a parole hearing we propose to make provision in the rules about information to be obtained from the prisoner in advance, which will help assess the prisoner's state of preparation. A check list for this information will be provided with the parole dossier to enable the prisoner to go through the list and ensure they are ready to proceed. The check list may, for example, ask questions such as:
- Whether the person is seeking release.
- If the person is not seeking release but instead wishes to propose a date for a future hearing, the proposed date and the reasons for this.
- Whether the person has received a copy of the dossier information and the date they received this.
- Whether the person wishes to be represented at the hearing, and if so, the name and address of their proposed representative.
- Whether the person wishes the Parole Board to consider their case without a hearing.
- A copy of any documentation that the person wishes to submit to the Parole Board.
- The person's views on whether they are adequately prepared for the hearing.
- If the person considers they are not prepared for the hearing what are the reasons for this and what date they consider they will be adequately prepared.
- Information about any requirements the person has in relation to the hearing, including—
- particular facilities or equipment,
- assistance or support from any other person,
- interpretation services required,
- other special arrangements the person considers necessary to assist them to participate in the hearing.
5.18 Provision would be made to ensure that failure to provide the check list or to fail to complete it, should not be a barrier to the hearing going ahead. The check list would be provided to assist the individual to understand all the points they should consider in advance of the hearing and to allow the individual to be in the best state of preparation for the hearing.
12. Do you agree or disagree with the proposal to include a check list to assist the individual to be in the best state of preparation in order to fullyparticipate in a parole hearing?
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